The Indian Succession Act, 1925

INTRODUCTION

"Succession" means capable of comprehending every kind of passing of property. When the British settled down to govern India, they were faced with the task of ascertaining the nature and incidents of the laws to be administered. With reference to the two main communities inhabiting the country, namely, the Hindus and Mohammadans, there was no much difficulty in the matter, because each of these communities had its own personal laws embodied in its sacred texts, but there were other smaller section of the population which belonged to neither of these communities and in those cases it was not proper to administer the laws of a religion to which they did not owe any adherence or commitment. Amongst such minor communities were the Christians and Parsis. It was then thought the enactment of a law of succession mainly based on the English Law might meet the requirement, and that with suitable modifications and safeguards the same might be embodied in statute.

Act 39 of 1925

The Indian Succession Bill received the assent of the Governor-General on 30th September, 1925 and became The Indian Succession Act, 1925 (39 of 1925).

List of Amending Acts and Adaptation Orders

1. The Indian Succession (Amendment) Act, 1926 (37 of 1926).

2. The Indian Succession (Second Amendment) Act, 1926 (40 of 1926).

3. The Repealing and Amending Act, 1927 (10 of 1927).

4. The Repealing Act, 1927 (12 of 1927).

5. The Indian Succession (Amendment) Act, 1927 (18 of 1927).

6. The Indian Succession (Amendment) Act, 1928 (14 of 1928).

7. The Indian Succession (Amendment) Act, 1929 (18 of 1929).

8. The Transfer of Property (Amendment) Supplementary Act, 1929 (21 of 1929).

9. The Indian Succession (Amendment) Act, 1931 (17 of 1931).

10. The Amending Act, 1934 (35 of 1934).

11. The Government of India (Adaptation of Indian Laws) Order, 1937.

12. The Repealing Act, 1938 (1 of 1938).

13. The Indian Succession (Amendment) Act, 1939 (17 of 1939).

14. The Berar Laws Act, 1941 (4 of 1941).

15. The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.

16. The Indian Succession (Amendment) Act, 1949 (35 of 1949).

17. The Adaptation of Laws Order, 1950.

18. The Part B States (Laws) Act, 1951 (3 of 1951).

19. The Repealing and Amending Act, 1952 (48 of 1952).

20. The Repealing and Amending Act, 1953 (42 of 1953).

21. The Union Territories (Laws) Amendment Act, 1956 (68 of 1956).

22. The Indian Succession (Amendment) Act, 1957 (34 of 1957).

23. The Indian Succession (Amendment) Act, 1962 (16 of 1962).

24. The Repealing and Amending Act, 1964 (52 of 1964).

25. The Delegated Legislation Provisions (Amendment) Act, 1983 (20 of 1983).

26. The Indian Succession (Amendment) Act, 1991 (51 of 1991).

THE INDIAN SUCCESSION ACT, 1925

(39 of 1925)

[30th September, 1925

An Act to consolidate the law applicable to intestate and testamentary succession * * *.

Whereas it is expedient to consolidate the law applicable to intestate and testamentary succession * * *. It is hereby enacted as follows: —

PART I - PRELIMINARY

1. Short title —

This Act may be called the Indian Succession Act, 1925.

2. Definitions —

In this Act, unless there is anything repugnant in the subject or context,—

(a) "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;

(b) "codicil" means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will;

(bb) "District Judge" means the Judge of a principal civil court of original jurisdiction;

(c) "executor" means a person to whom the execution of the last will of a deceased person is, by the testator’s appointment, confided;

(cc) "India" means the territory of India excluding the State of Jammu and Kashmir;

(d) "Indian Christian" means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion;

(e) "minor" means any person subject to the Indian Majority Act, 1875 (9 of 1875) who has not attained his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;

(f) "probate" means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;

(g) "State" includes any division of India having a court of the last resort; and

(h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

3. Power of State Government to exempt any race, sect or tribe in the State from operation of Act —

(1) The State Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the following provisions of this Act, namely, sections 5 to 49, 58 to 191, 212, 213 and 215 to 369, the members of any race, sect or tribe in the State, or of any part of such race, sect or tribe to whom the State Government considers it impossible or inexpedient to apply such provisions or any of them mentioned in the order.

(2) The State Government may, by a like notification, revoke any such order, but not so that the revocation shall have retrospective effect.

(3) Persons exempted under this section or exempted from the operation of any of the provisions of the Indian Succession Act, 18651 (10 of 1865), under section 332 of that Act are in this Act referred to as "exempted persons".

PART II - OF DOMICILE

4. Application of Part —

This Part shall not apply if the deceased was a Hindu, Mohammedan, Buddhist, Sikh or Jain.

5. Law regul ovable property in France, movable property in England and property, both movable and immovable, in India. The succession to the whole is regulated by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in India and leaves property both movable and immovable, in India. The succession to the movable property is regulated by the rules which govern, in France, the succession to the movable property of an Englishman dying domiciles in France, and the succession to the immovable property is regulated by law of India.

6. One domicile only affects succession to movables —

A person can have only one domicile for the purpose of the succession to his movable property.

7. Domicile of origin of person of legitimate birth —

The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death.

Illustration

At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England, whatever may be the country in which he was born.

8. Domicile of origin of illegitimate child —

The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.

9. Continuance of domicile of origin —

The domicile of origin prevails until a new domicile has been acquired.

10. Acquisition of new domicile —

A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.

Explanation — A man is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing therein the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.

Illustrations

(i) A, whose domicile of origin is in England, proceeds to India, where he settles as a barrister or a merchant, intending to reside there during the remainder of his life. His domicile is now in India.

(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria.

(iii) A, whose domicile of origin is in France, comes to reside in India under an engagement with the Central Government for a certain number of years. It is his intention to return to France at the end of that period. He does not acquire a domicile in India.

(iv) A, whose domicile is in England, goes to reside in India for the purpose of winding up the affairs of a partnership which has been dissolved, and with the intention of returning to England as soon as that purpose is accomplished. He does not by such residence acquire a domicile in India, however, long the residence may last.

(v) A, having gone to reside in India in the circumstances mentioned in the last preceding illustration, afterwards alters his intention, and takes up his fixed habitation in India. A has acquired a domicile in India.

(vi) A, whose domicile is in the French Settlement of Chandernagore*, is compelled by political events to take refuge in Calcutta, and resides in Calcutta for many years in the hope of such political changes as may enable him to return with safety to Chandernagore. He does not by such residence acquire a domicile in India.

(vii) A, having come to Calcutta in the circumstances stated in the last preceding illustration, continues to reside thereafter such political changes have occurred as would enable him to return with safety to Chandernagore, and he intends that his residence in Calcutta shall be permanent. A, has acquired a domicile in India.

11. Special mode of acquiring domicile in India —

Any person may acquire a domicile in India by making and depositing in some office in India appointed in this behalf by the State Government, a declaration in writing under his hand of his desire to acquire such domicile; provided that he has been resident in India for one year immediately preceding the time of his making such declaration.

12. Domicile not acquired by residence as representative of foreign Government, or as part of his family —

A person who is appointed by the Government of one country to be its ambassador, consul or other representative in another country does not acquire a domicile in the latter country by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with such first-mentioned person as part of his family, or as a servant.

13. Continuance of new domicile —

A new domicile continues until the former domicile has been resumed or another has been acquired.

14. Minor’s domicile —

The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.

Exception —The domicile of a minor does not change with that of his parent, if the minor is married, or holds any office or employment in the service of Government, or has set up, with the consent of the parent, in any distinct business.

15. Domicile acquired by woman on marriage —

By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.

16. Wife’s domicile during marriage —

A wife’s domicile during her marriage follows the domicile of her husband.

Exception —The wife’s domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.

17. Minor’s acquisition of new domicile —

Save as hereinbefore otherwise provided in this Part, a person cannot, during minority, acquire a new domicile.

18. Lunatic’s acquisition of new domicile —

An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.

19. Succession to movable property in India in absence of proof of domicile elsewhere —

If a person dies leaving moveable property in India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of India.

PART III – MARRIAGE

20. Interests and powers not acquired nor lost by marriage —

(1) No person shall, by marriage, acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.

(2) This section—

(a) shall not apply to any marriage contracted before the first day of January, 1866;

(b) shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or Jain religion.

21. Effect of marriage between person domiciled and one not domiciled in India —

If a person whose domicile is not in India marries in India a person whose domicile is in India, neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquir anuary, 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jain.

PART IV -OF CONSANGUINITY

23. Application of Part —

Nothing in this Part shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi.

24. Kindred or consanguinity —

Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.

25. Lineal consanguinity —

(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the descending line.

(2) Every generation constitutes a degree, either ascending or descending.

(3) A person’s father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in this third degree, and so on.

26. Collateral consanguinity —

(1) Collateral consanguinity is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.

(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is necessary to reckon upwards from the person deceased to the common stock and then downwards to the collateral relative, a degree being allowed for each person, both ascending and descending.

27. Persons held for purpose of succession to be similarly related to deceased —

For the purpose of succession, there is no distinction—

(a) between those who are related to a person deceased through his father, and those who are related to him through his mother; or

(b) between those who are related to a person deceased by the full blood, and those who are related to him by the half blood; or

(c) between those who were actually born in the lifetime of a person deceased, and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive.

28. Mode of computing of degrees of kindred —

Degrees of kindred are computed in the manner set forth in the table of kindred set out in Schedule I.

Illustrations

(i) The person whose relatives are to be reckoned, and his cousin-german, or first cousin, are, as shown in the table, related in the fourth degree; there being one degree of ascent to the father, and another to the common ancestor, the grandfather; and from him one of ascent to the uncle, and another to the cousin-german, making in all four degrees.

(ii) A grandson of the brother and a son of the uncle, i.e., a great-nephew and a cousin-german, are in equal degree, being each for degree removed.

(iii) A grandson of a cousin-german is in the same degree as the grandson of a great-uncle, for they are both in the sixth degree of kindred.

PART V - INTESTATE SUCCESSION

Chapter I -Preliminary

29. Application of Part —

(1) This Part shall not apply to any intestacy occurring before the first day of January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jain.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India in all cases of intestacy.

30. As to what property deceased considered to have died intestate —

A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.

Illustrations

(i) A has left no will. He has died intestate in respect of the whole of his property.

(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other provision. A has died intestate in respect of the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution of his property.

(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest; and has died leaving the sum of 2,000 rupees and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of 1,000 rupees.

Chapter II - Rules in cases of Intestates other than Parsis

31. Chapter not to apply to Parsis —

Nothing in this Chapter shall apply to Parsis.

32. Devolution of such property —

The property of an intestate devolve upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter.

Explanation — A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband’s estate.

33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred —

Where the intestate has left a widow—

(a) if he has also left any lineal descendants, one-thirds of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;

(b) save as provided by section 33A if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.

33A. Special provision where intestate has left widow and no lineal descendants —

(1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.

(2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.

(3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed in accordance with the provisions of section 33 as if it were the whole of such intestate’s property.

(4) The net value of the property shall be ascertained by deducting from the gross value thereof all debts, and all funeral and administration expenses of the intestate, and all other lawful liabilities and charges to which the property shall be subject.

(5) This se and where he has left no kindred —

Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.

35. Rights of widower —

A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband’s property, if he dies intestate.

Distribution where there are lineal descendants

36. Rules of distribution —

The rules for the distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those contained in sections 37 to 40.

37. Where intestate has left child or children only —

Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.

38. Where intestate has left no child, but grand-child or grand-children —

Where the intestate has not left surviving him any child but has left a grand-child or grand-children and no more remote descendant through a deceased grand-child, the property shall belong to his surviving grand-child if there is one, or shall be equally divided among all his surviving grand-children.

Illustrations

(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grand-children and no descendant of any deceased grand-child. Each of his grand-children will have one-ninth.

(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate’s five grand-children, the children of John and Mary.

39. Where intestate has left only great-grand-children or remoter lineal descendants —

In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.

40. Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead —

(1) If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him, leaving lineal descendants who survived him.

(2) One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate.

Illustrations

(i) A had three children, John, Mary and Henry; John died, leaving four children, and Mary died, leaving one, and Henry alone survived the father. On the death of A, intestate, one-third is allotted to Henry, one-third to John’s four children, and the remaining third to Mary’s one child.

(ii) A left no child, but left eight grand-children, and two children of a deceased grand-child. The property is divided into nine parts, one of which is allotted to each grand-child, and the remaining one-ninth is equally divided between the two great-grand-children.

(iii) A has three children, John, Mary and Henry; John dies leaving four children; and one of John’s children dies leaving two children. Mary dies leaving one child. A afterwards dies intestate. One-third of his property is allotted to Henry, one-third to Mary’s child and one-third is divided into four parts, one of which is allotted to each of John’s three surviving children, and the remaining part is equally divided between John’s two grand-children.

(iv) A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant. Then A dies leaving Mary surviving him, and in due time a child of John is born. A’s property is to be equally divided between Mary and the posthumous child.

Distribution where there are no lineal descendants

41. Rules of distribution where intestate has left no lineal descendants —

Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow’s share, if he has left a widow) shall be those contained in sections 42 to 48.

42. Where intestate’s father living —

If the intestate’s father is living, he shall succeed to the property.

43. Where intestate’s father dead, but his mother, brothers and sisters living —

If the intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares.

Illustration

A dies intestate, survived by his mother and two brothers of the full blood, John and Henry and a sister Mary, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth and Mary, the sister of half blood, takes one-fourth.

44. Where intestate’s father dead and his mother, a brother or sister, and children of any deceased brother or sister living —

If the intestate’s father is dead but the intestate’s mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then the mother an each living brother or sister, and the living child or children of each deceased brother or sister, shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.

Illustration

A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each take one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.

45. Where intestate’s father dead and his mother and children of any deceased brother or sister living —

If the intestate’s father is dead, but the intestate’s mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.

Illustration

A, the intestate, leaves no brother or sister but leaves his mother and one child of deceased sister, Mary and two children of deceased brother George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.

46. Where intestate’s father dead, but his mother living and no brother, sister, nephew or niece —

If the intestate’s father is dead, but the intestate’s mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.

47. Where intestate has left neither lineal descendant, nor father, nor mother —

Where the intestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.

48. Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister —

Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.

Illustrations

(i) A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

(ii) A, the intestate, has left a great-grandfather, or a great-grandmother, and uncles and aunts, and no other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

(iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of kindred to him. All of these being in the third degree will take equal shares.

(iv) Ten children of one brother or sister of the intestate and one child of another brother or sister of the intestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the property.

49. Children’s advancements not brought into hotchpot —

Where a distributive share in the property of a person who has died intestate is claimed by a child, or any descendant of a child, of such person, no money or other property which the intestate may, during his life, have paid, given or settled to, or for the advancement of, the child by whom or by whose descendant the claim is made shall be taken into account in estimating such distributive share.

Chapter III - Special Rules for Parsi Intestates

50. General principles relating to intestate succession —

For the purpose of intestate succession among Parsis—

(a) there is no distinction between those who were actually born in the lifetime of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive;

(b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a widow or widower or any lineal descendant or a widow or widower of any lineal descendant shall not be taken into account in determining the manner in which the property of which the intestate has died intestate shall be divided; and

(c) where a widow or widower of any relative of an intestate has married again in the lifetime of the intestate, such widow or widower shall not be entitled to receive any share of the property of which the intestate has died intestate, and such widow or widower shall be deemed not to be existing at the intestate’s death.

51. Division of intestate’s property among widow, widower, children and parents —

(1) Subject to the provisions of sub-section (2), the property of which a Parsi dies intestate shall be divided, —

(a) where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child receive equal shares;

(b) where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.

(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.

52. Repealed.6

53. Division of share of predeceased child of intestate leaving lineal descendants —

In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestate’s death shall be in accordance with the following rules, namely:—

(a) If such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this Chapter as if he had died immediately after the intestate’s death:

Provided that where such deceased son has left a widow or a widower of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this Chapter as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account.

(b) If such deceased child was a daughter, her share shall be divided equally among her children.

(c) If any child of such deceased child has also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestate’s death, shall be divided in like manner in accordance with clause (a) or clause (b) as the case may be.

(d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled if living at the intestate’s death by reason of the pre-decease of all the intestate’s lineal descendants directly between him or her and the intestate.

54. Division of property where intestate leaves no lineal descendant but leaves a widow or widower of any lineal descendant —

Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules, namely:—

(a) if the intestate leaves a widow or widower but no widow or widower of a lineal descendant, the widow or widower shall take half the said property;

(b) if the intestate leaves a widow or widower and also a widow or widower of any lineal descendant, his widow or her w but more than one widow or widower of lineal descendants, two thirds of the said property shall be divided among such widows or widowers of the lineal descendants in equal shares;

(d) the residue after the division specified in clause (a), or clause (b) or clause (c) has been made shall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II; and the next-of-kin standing first in Part I of that Schedule shall be preferred to those standing second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares;

(e) if there are no relatives entitled to the residue under clause (d), the whole of the residue shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section.

55. Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow of any lineal descendant —

When a Parsi dies leaving neither lineal descendants nor a widow or widower nor a widow or widower of any lineal descendant, his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares.

56. Division of property where there is no relative entitled to succeed under the other provisions of this Chapter —

Where there is no relative entitled to succeed under the other provisions of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.

PART VI - TESTAMENTARY SUCCESSION

Chapter I - Introductory

57. Application of certain provisions of Part to a class of wills made by Hindus, etc.—

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such will or codicil.

58. General application of Part —

(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain; nor shall they apply to any will made before the first day of January, 1866.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession.

Chapter II - Of Wills and Codicils

59. Person capable of making wills —

Every person of sound mind not being a minor may dispose of his property by will.

Explanation 1 —A married woman may dispose by will of any property which she could alienate by her own act during her life.

Explanation 2 —Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.

Explanation 3 —A person who is ordinarily insane may make a will during an interval in which he is of sound mind.

Explanation 4 —No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

Illustrations

(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.

(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property makes a will. This is a valid will.

COMMENTS

(i) In order to constitute sound testamentary disposition the testator must retain a degree of understanding to comprehend what he is doing, have a volition or power of choice and that what he does is really his doing and not the doing of anybody else; Swinfen v. Swinfen, AIR 1953 Nag 316.

(ii) Where execution of a Will has been proved by reliable and cogent evidence, the presumption would be that the testator was sane and had sound testamentary capacity; Man Kaur v. Gurnam, AIR 1984 NOC 51 (Punj).

(iii) A probate court is only concerned with the question as to whether the document put forward as the last will of the deceased person was duly executed and attested. The court is also to see whether at the time of the execution of that document whether the testator had sound disposing mind. The probate court is not to embark on the question relating to disputed questions of title and possession; Papoo v. Kuruvilla, 1994 (2) KLT 278.

(iv) If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will be unnatural and might cut off wholly or in a part near relations; Gopal v. Smt. Adarmoni, (1988) I OLR 352.

(v) A minor being of immature understanding cannot be said to be of sound mind and as such incapable of making a Will. An exception to this principle is to be found in section 60 of the Indian Succession Act. A Will executed by a minor, though inoperative as a Will may be operative as a valid authority to adopt; Vijayratnam v. Sudarsan, AIR 1925 PC 196.

(vi) A minor of whose person and property a guardian has been appointed by the court shall remain a minor until he attains majority under section 3 of the Indian Majority Act, 1875 and till such time incompetent to make a Will; In re Miranda, AIR 1924 Cal 644.

(vii) In order to make a valid Will testator need not be in perfect state of health. Even a tuberculosis patient may be in fit state of mind to execute a Will. Illness and physical weakness of the testator/testatrix would least affect his/her mental health or disposing state of mind in the absence of evidence to the contrary; Jamuava Dasi v. Hari Dasi, 1957 ALJ 667.

(viii) The testator being old and also suffering from paralysis. There was no material to show that he understood and accepted deposition made in Will. The soundness of mind was also not proved. Also the execution and attestation was surrounded by suspicious circumstances, prodigious in number. Profounder failed to establish authenticity of the Will. It has been held that no probate could be granted; Vasudeo Mahadeo Paranjape v. Smt. Suman Anant Paranjape, AIR 1994 NOC 137 (MP).

(ix) Mere signatures of witnesses towards the end of an instrument or somewhere on an instrument are quite sufficient to show without explanation that the witnesses put their signatures by way of saying that they had seen the document being executed and had received an acknowledgement. It is not necessary for them to state that they put their signatures in the presence of the testator; Dulhin Ful Kueri v. Moti Jharo Kuer, AIR 1972 Pat 214: 1972 BLJR 256 (DB).

60. Testamentary guardian —

A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.

61. Will obtained by fraud, coercion or importunity —

A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.

Illustrations

(i) A, falsely and knowingly, represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A’s favour; such will has been obtained by fraud, and is invalid.

(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.

(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.

(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the making of it having been caused by coercion.

(v) A, being of sufficient intellect, if undisturbed by the influence of others, to make a will yet being so much under the control of B that he is not a free agent, makes a will dictated by B. It appears that he would not have executed the will but for fear of B. The will is invalid.

(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid.

(vii) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B.

(viii) A with a view to obtaining a legacy from B, pays him attention and flatters him and thereby produces in him a capricious partiality to A. B, in consequence of such attention and flattery makes his will, by which he leaves a legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

COMMENTS

(i) The influence to vitiate an act must amount to force and coercion destroying free agency. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator and his signature as required by law, court would be justified in making a finding in favour of the propounder. But in cases in which an executor of the Will is surrounded with suspicious circumstances and the propounder fails to remove the suspicion as to execution of the Will, probate would be refused; Asutosh v. Umasashi, AIR 1984 Cal 223.

(ii) Where the suspicion arises with regard to a particular clause of a Will which is removable but the suspicion is not removed by the propounder, the court can admit the rest of the instrument to probate; Sarat Kumari v. Swatichand, 33 CWN 374: 56 IA 62: AIR 1929 PC 45.

(iii) To constitute fraud the conduct of the party committing the fraud must be deliberately dishonest. Fraud may be pleaded as a defence in a probate proceeding alleging that the execution of the Will was obtained by fraud. But the burden of proving fraud lies squarely upon the person who alleges the same; Kamla v. Ratan, AIR 1971 All 304.

(iv) To constitute coercion actual violence is not the necessary element to be proved. All that is required to be proved is that there must be some influence relating to the making of the Will itself and over bearing the mind of the testator; Boyse v. Rossbarough, (1857) HL Cas 2.

(v) The mere fact that a person has been suffering from some mental distress is not sufficient to give rest to a presumption of undue influence. Apart from mental distress there must be some action exerting pressure or influence on behalf of the other party; Gobordhan v. Jai Kishan, I LR 22 All 224.

62. Will may be revoked or altered —

A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.

COMMENTS

(i) Where the testator or testatrix, an illiterate person, intelligently understood contents of the Will, when it is read over to him or her and directed changes in it, it cannot be said that the Will was not intelligently executed; L. Chamanlal v. Ram Katori, AIR 1972 SC 2296.

(ii) A Will is of its own nature revocable and, therefore, though a man should make his testament and last Will irrevocable in the strongest and most express terms, yet he may revoke it, because his own act and deed cannot alter judgment of law to make that irrevocable which is of its own nature revocable; Ram Avtar v. Ram Sundari, AIR 1959 Pat 585.

(iii) In case of two Wills, the latter one will prevail; Badari Basamma v. Kandrikeri, AIR 1984 NOC 237 (Kant).

Chapter III - Of the Execution of unprivileged Wills

63. Execution of unprivileged wills —

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: —

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

COMMENTS

(i) In order g and signing the document; Radharani Devi v. Kadambini Devi, AIR 1995 Ori 88.

(iii) For the genuineness of the Will it is required to be proved whether two attesting witnesses have seen the testator sign and they signed in presence of the testator; S.A. Quddus v. S. Veerappa, AIR 1994 Kar 20.

(iv) If no form is prescribed for attestation, then witness need not be labelled as attesting witness; K.M. Verghese v. K.M. Ooknnen, AIR 1994 Ker 85.

(v) Considering human behaviour absence of provision for the two ladies cannot be said to be natural and when suspicious circumstances have not been satisfactorily explained, Will cannot be held to be genuine; Smt. Gattu Devi v. Ladu Narain, AIR 1994 NOC 23 (Raj).

(vi) As regards attestation of Will, the clause (c) of section 63 required that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator ; Smt. Punni v. Sumer Chand, AIR 1995 HP 74.

64. Incorporation of papers by reference —

If a testator, in a will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the will or codicil in which it is referred to.

Chapter IV - Of privileged Wills

65. Privileged wills —

Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills.

Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will.

(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner, and, being at sea, can make a privileged will.

(iii) A, a soldier service in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged will.

(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged will.

(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged will.

(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will.

COMMENTS

The Will executed by a person, although enlisted and undergoing training, a week before he was actually sent overseas, cannot be accepted as privileged Will; Simpson v. Bennet, AIR 1946 Oudh 73.

66. Mode of making, and rules for executing, privileged wills —

(1) Privileged wills may be in writing, or may be made by word of mouth.

(2) The execution of privileged wills shall be governed by the following rules:—

(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.

(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator’s directions or that he recognised it as his will.

(d) If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.

(e) If the soldier, airman or mariner has written instructions for the preparation of his will, but has died before it could be prepared and executed such instructions shall be considered to constitute his will.

(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his will, although they may not have been reduced into writing in his presence, nor read over to him.

(g) The soldier, airman or mariner may make a will by word of mouth by declaring his intentions before two witnesses present at the same time.

(h) A will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will.

Chapter V - Of the Attestation, Revocation, Alteration and Revival of Wills

67. Effect of gift to attesting witness —

A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.

Explanation —A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.

68. Witness not disqualified by interest or by being executor —

No person, by reason of interest in, or of his being an executor of, a will shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.

COMMENTS

In the absence of any evidence, in case signatures are appearing on the document only for the purpose of certifying that he is a scribe or an identifier or a registering officer he is to be considered as such and not an attesting witness. To be regarded as an attesting witness, it must be shown that he had put his signature with the intention and for the purpose of attesting it or certifying of having received from the executant a personal acknowledgement of his signature; Smt. Punni v. Sumer Chand, AIR 1995 HP 74.

69. Revocation of will by testator’s marriage —

Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.

Explanation —Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.

70. Revocation of unprivileged will or codicil —

No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.

Illustrations

(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.

(ii) A has made an unprivileged will. Afterwards, A being entitled to make a privileged will makes a privileged will, which purports to revoke his unprivileged will. This is a revocation.

COMMENTS

The testator intended to give properties for religious and charitable purposes. That intention has been reiterated in the last will as well. The bequest to charity under the last will failed only because of section 118 of the Succession Act. Consequent on that if the revocatory clause is given its full effect, it will defeat the intention of the testator. A probate court is not to resort to an interpretation which will patently go to defeat the testator’s wishes. In fact when the testator had in unmistakable terms expressed his intention to bequeath his properties for religious and charitable purposes; Papoo v. Kuruvilla, 1994 (2) KLT 278.

71. Effect of obliteration, interlineation or alteration in unprivileged will —

No obliteration, interlineation or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the will:

Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.

72. Revocation of privileged will or codicil —

A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.

Explanation — In order to the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.

73. Revival of unprivileged will —

(1)No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.

(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.

Chapter VI - Of the construction of Wills

74. Wording of will —

It is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.

COMMENTS

(i) Document styled as settlement deed but reciting the settlee will take property absolutely after the death of settlor and his wife is not a settlement deed or gift but a document of transfer for consideration or a Will; Narsimhan v. Perumal, AIR 1994 NOC 39 (Mad).

(ii) In making of a Will, if technical words are used, then they should be prima facie understood to have been used in the ordinary sense; Lalit Mohan v. Chukkanlal, ILR 24 Cal 834.

(iii) A will must be construed as a whole to give effect to the manifest intention of the testator; Nathu v. Debi Singh, AIR 1966 Punj 226.

(iv) There is no gain saying the proposition that in case there are unambiguous dispositive words in the Will, they should be given full effect consistent with the intention of the testator, and in case any restrictive or qualifying expression is used to circumscribe the enjoyment of the devise so made, then that has to be ignored as being repugnant to the real intention of the deceased; Rajrani Sehgal v. Dr. Parshottam Lal, 46 (1992) DLT 263.

75. Inquiries to determine questions as to object or subject of will —

For the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduct to the right application of the words which the testator has used.

Illustrations

(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to his youngest grand-child, or to his cousin, Mary; a Court may make inquiry in order to ascertain to what person the description in the will applies.

(ii) A, by his will, leaves to B "my estate called Black Acre." It may be necessary to take evidence in order to ascertain what is the subject-matter of the bequest; that is to say, what estate of the testator’s is called Black Acre.

(iii) A, by his will, leaves to B "the estate which I purchased of C". It may be necessary to take evidence in order to ascertain what estate the testator purchased of C.

76. Misnomer or misdescription of object —

(1) Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.

(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.

Illustrations

(i) A bequeaths a legacy to "Thomas, the second son of my brother John". The testator has an only brother named John, who has no son named Thomas, but has a second son whose name is William. William will have legacy.

(ii) A bequeaths a legacy "to Thomas, the second son of my brother John". The testator has an only brother, named John, whose first son is named Thomas and whose second son is named William. Thomas will have the legacy.

(iii) The testator bequeaths his property "to A and B, the legitimate children of C". C has no legitimate child, but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.

(iv) The testator gives his residuary estate to be divided among "my seven children" and, proceeding to enumerate them, mentions six names only. This omission will not prevent the seventh child from taking a share with the others.

(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren" and proceeding to mention them by their Christian names, mentions one twice over om "five hundred" to his daughter A and a legacy of "five hundred rupees" to his daughter B. A will take a legacy of five hundred rupees.

78. Rejection of erroneous particulars in description of subject —

If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-lands lying in L but had no marsh-lands in the occupation of X. The words "in the occupation of X" shall be rejected as erroneous, and the marsh-lands of the testator lying in L will pass by the bequest.

(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at Rampur but it was a taluq and not a zamindari. The taluq passes by this bequest.

COMMENTS

In order to effectuate the intention as gathered from the contents of the Will, the court will be justified in reading the Will in the correct form as expressing the intended meaning; Sajanibai v. Surajmal, 1985 MP LJ 227.

79. When part of description may not be rejected as erroneous —

If a will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, and it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.

Explanation — In judging whether a case falls within the meaning of this section, any words which would be liable to rejection under section 78 shall be deemed to have been struck out of the will.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-lands lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be considered as limited to such of the testator’s marsh-lands lying in L as were in the occupation of X.

(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas of lands". The testator had marsh-lands lying in L some of which were in the occupation of X and some not in the occupation of X. The measurement is wholly inapplicable to the marsh-lands of either class, or to the whole taken together. The measurement will be considered as struck out of the will, and such of the testator’s marsh-lands lying in L as were in the occupation of X shall alone pass by the bequest.

80. Extrinsic evidence admissible in cases of patent ambiguity —

Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which can have been intended by the testa